HIV Positive Nicaraguan Fights U.S. Deportation and Wins

Just a week
before Christmas 1996, a New York immigration judge granted suspension of
deportation to a gay HIV-positive Nicaraguan man, thereby making him a
permanent resident of the United States. As the applicant, Carlos,*
completed his powerful and moving testimony, one of the government trial
attorneys representing the Immigration Service wiped tears from her eyes.
The government conceded the case without asking the applicant a single
question.

In an oral decision, the judge ruled that Carlos would
suffer extreme hardship if deported because of persecution of gays and
persons with HIV in Nicaragua, and because he would be separated from his
partner, a U.S. citizen. After the decision was rendered, the two men
embraced spontaneously with immense relief and happiness.

After
fleeing a lifetime of anti-gay persecution in Nicaragua, Carlos had
traveled by airplane, car, and foot through Guatemala and Mexico before
crossing without inspection into Texas in July 1989. A few days later he
arrived in New York City where he would live with his grandmother and
cousins.

Carlos lived in New York City for a year with his
Nicaraguan relatives until he became estranged from his family when they
found out he was gay. He moved out of Manhattan and eventually met his
current partner, an American citizen, with whom he has been in a
relationship for five years. During the more than seven years that Carlos
had lived in the United States, he studied and became fluent in English,
studied computer and tax courses, worked at a dry cleaner, a bakery,
several retail stores, and as a bookkeeper.

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In July 1996, he stumbled
across some information about asylum from members of the Lesbian and Gay
Immigration Rights Task Force he met in Queens, and decided to apply for
political asylum based on his fear of persecution as a gay man in Nicaragua
and as a person with HIV. For almost two months he worked with his lawyer
to prepare the case, including supporting statements from other Nicaraguans
and extensive documentation about conditions in Nicaragua for gays and
people with HIV/AIDS. A few weeks after filing his application, Carlos was
summoned to an interview at the New York Asylum office. At the interview,
the interviewing officer asked almost no questions and sat expressionless
as Carlos explained the basis of his case. The asylum officer seemed
unsympathetic. Carlos felt that his case would not be granted at this
stage. As is sometimes the case, his application for asylum was not granted
and he was referred to an immigration judge for deportation.

About a month later, before the judge, Carlos applied again for
asylum and filed an additional application for "suspension of
deportation." He was only days away from the effective date of the
Anti-Terrorism Act, which rendered those who had entered without inspection
ineligible for suspension. The judge accepted both applications, and with
Carlos' agreement, scheduled his case for a full hearing in only six weeks.
(Ultimately, the judge decided to grant the suspension application,
conferring upon Carlos immediate status as a permanent resident.)

In
his applications, Carlos cited a lifelong history of vicious anti-gay
violence beginning in his childhood. The perpetrators included his own
father, neighborhood children and students in his high school. He recounted
harrowing stories of physical and sexual abuse that were visited upon him
because he was identified as gay and from which he was powerless to seek
protection from the authorities, who themselves were widely known to
arrest, detain, mistreat, and otherwise persecute gays.

Carlos also
testified before the judge to harassment and death threats at the bank
where he worked in Managua and explained how he lost his job more than once
because coworkers refused to work with a person they suspected of being
gay. He then described the repeated and humiliating physical and sexual
violence he experienced while performing mandatory military service at the
age of 18. After finally completing his military service and returning to
civilian life, Carlos again experienced anti-gay attacks and decided to
flee Nicaragua.

In addition to his extensive personal experiences,
which were laid out in great detail in a lengthy affidavit, Carlos and his
lawyer supplied hundreds of pages of documentation and affidavits
evidencing the persecution of gays in Nicaragua. These included news
articles and human rights reports from around world condemning the then
newly elected government of Violeta Chamorro for passing a wide-ranging
anti-gay law in 1992. (Some of this documentation was supplied by the
International Gay and Lesbian Human Rights Commission and Gay Men's Health
Crisis.)

In support of his suspension application, Carlos testified
about his life with his American partner, his partner's children, grandson,
and others who make up his immediate family. He told the court that his
life would be destroyed if he was forced to return to Nicaragua and
separated from his life-partner. In addition to the destruction of their
relationship, Carlos also told the court that as persons living with HIV
they both relied on each other greatly, and that their relationship had
sustained their physical and emotional health over the past few years.
Carlos provided several documents, including news articles and expert
affidavits, showing that persons with HIV/AIDS in Nicaragua are actively
discriminated against, denied even basic medical treatment, persecuted,
harassed, and sometimes even killed because of the pervasive fear and
misinformation about the virus.

What's remarkable about this case
it is that it is probably one of the last of its kind due to the change in
the law that removed "suspension of deportation" as an option,
and instituted "cancellation" on April 1, 1997. [These changes
are discussed in depth in the main article, "Limited Justice for
HIV-Positive Immigrants."]

Carlos had entered without
inspection only seven years before filing his application for asylum. By
luck he found out about the possibility of asylum in time to file before
the April 1, 1998 deadline. He had no "qualifying relative" to
meet the new "cancellation" requirements, but had an extremely
compelling and strong case for both asylum and suspension because of the
persecution he would have faced if forced to return to Nicaragua as a gay
man and a person with HIV. The judge in Carlos' case also considered the
hardship that would be caused to Carlos and his partner if they were forced
to separate in the event Carlos was deported. This consideration of the gay
couple's relationship will also not occur under the new
"cancellation" guidelines. In the future, individuals like Carlos
whose asylum cases are not granted may face deportation with no other form
of relief.

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